It is contended by the learned Counsel for the
petitioners that amendment sought was on two aspects of the
matter, (i) seeking mandatory injunction ante and (ii) deletion
of respondent no. 4 as party-defendant. The learned Counsel
submits
that
since
it
came
to
petitioners
knowledge
subsequent to filing of suit that section 4 notification had been
issued and respondent no. 4 did not act as Government
contractor in carrying out the impugned works on the suit
property, it became necessary for them to amend the
pleadings, cause-title and relief clause and in such a case
question of due diligence would not arise.
9.
There is no dispute that during the pendency of the
suit, Section 4 notification came to be issued.
Therefore,
amendment as regards relief of mandatory injunction ante
could not have been made earlier with all diligence at
command of petitioners.
It has been necessitated, as
submitted by the learned Counsel for petitioners, by a
subsequent
development
of
Section
4
notification
and
prompted as a measure of abundant precaution as presently
only Section 4 notification has been issued and there is no
certainty that process of acquisition would be completed by
passing of award.
He submits that if property is acquired
eventually, the suit may become infructuous but till that time,
seeking of proposed relief is necessary.
Learned Counsel for
respondents 1, 2 and 3 submits that acquisition proceedings
are going to be logically concluded and, therefore, there is no
need to seek such a relief. However, having regard to stage of
the acquisition proceedings at present, some precautionary
measure from the view point of petitioners seems necessary
and they can be permitted to resort to it, if no prejudice is
going to be caused to other side. In my view, it will not cause
any prejudice to respondents as they can also seek leave of
Court below, in accordance with law, to make consequential
amendments. So, the amendment on this aspect should have
been allowed by the Court below.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 584 OF 2013
Mr. Ashok Teofilo Vaz,
V/s
State of Goa,
CORAM : S.B. SHUKRE, J.
DATE : 4th March, 2014
Citation; 2015(1) MHLJ 197 Goa HC
This petition is directed against an order passed on
18.03.2013, passed in Civil Suit No. 76/2010, by learned Ad-
hoc District Judge-1, Panaji, thereby partly allowing the
amendment application of the petitioners and partly rejecting
the same.
3.
The civil suit was filed by the petitioners against the
respondents seeking various reliefs including the relief of
mandatory injunction ante against the respondents.
During
the pendency of the suit, it was learnt by the petitioners that
Section 4 notification under Land Acquisition Act for acquisition
of suit property came to be issued by Government of Goa and
it was also learnt in response to the query made by the
petitioner under R.T.I. Act that respondent no. 4 was not a
Government Contractor, who carried out the work at the suit
property at the instance of the Government and therefore, the
petitioners
sought
incorporating
said
amendment
events
and
to
also
their
pleadings
sought
deletion
by
of
respondent no. 4, a party-defendant to the suit. It was also
apprehended by the petitioners that Section 4 notification
might not be taken to it's logical end and therefore, as a
matter of precaution the petitioners thought it proper to make
another prayer seeking mandatory injunction ante against the
remaining respondents.
Accordingly, the prayer clause was
sought to be amended by the petitioners.
4.
The amendment application was strongly opposed
by the respondents by relying upon proviso to Order 6, Rule
17 of the Code of Civil Procedure.
They submitted that
hearing of the suit had already commenced as the issues were
framed and the suit was fixed for recording of evidence and
therefore, it was necessary for them to make out a case that
amendments could not be made earlier inspite of due diligence
on their part, and it was not made out. It was also submitted
that in any case the suit property was going to be acquired for
public purpose and when the acquisition would be complete,
the suit itself would be rendered infructuous. Respondent no.
4, in addition, submitted that he was a necessary party to the
suit as there were some adverse references made against him
in
the
plaint
and
reliefs
respondents in general.
were
sought
as
against
the
On these grounds, the respondents
urged that the amendment application be rejected.
5.
After hearing the rival submissions of the parties,
the learned Ad-hoc District Judge-1, Panaji, partly allowed the
application to the extent of incorporating of subsequent events
in the nature of issuance of section 4 notification and rejected
the prayer for incorporating the other amendment relating to
seeking of relief of mandatory injunction ante and deletion of
respondent no. 4 from the array of parties, by an order passed
on 18.03.2013.
6.
I have heard the learned Counsel for petitioners for
respondents no. 1, 2 and 3 and for respondent no. 4. I would
first like to consider the law governing the field which is stated
in Order 6, Rule 17 of Civil Procedure Code and it is
reproduced as under:
“17.
Amendment of pleadings -
The
Court may at any stage of the proceedings
allow either party to alter or amend his
pleadings in such manner and on such
terms as may be just, and all such
amendments shall be made as may be
necessary for the purpose of determining
the real questions in controversy between
the parties:
Provided
that
no
application
for
amendment shall be allowed after the trial
has commenced, unless the Court comes
to the conclusion that inspite of due
diligence, the party could not have raised
the matter before the commencement of
trial.”
Above provision makes it clear that amendment of
pleadings can be allowed at any stage of proceedings, subject
to such terms and conditions as may be put by the Court. It
also shows that if trial of suit has commenced, different
considerations will apply for exercise of power under Order 6,
Rule 17 of C.P.C., which is discretionary. In that case proviso
to Rule 17, Order 6 of C.P.C. would control the power of Court
to allow amendment of pleadings.
In this regard, learned
Counsel for respondents 1,2 and 3 has invited my attention to
the decision of the Hon'ble Apex Court in the case of Vidyabai
and others versus Padmalatha and another, reported in AIR
2009 SC 1433.
7.
In the said case of Vidyabai (supra) the Hon'ble
Apex Court has held that proviso to Order 6, Rule 17 of the
Code of Civil Procedure has been framed in a mandatory form
and it gives jurisdiction to the court in a limited manner. The
Hon'ble Apex Court has held that the civil Court can allow the
amendment application after the trial has commenced only
when the condition prescribed in the proviso is satisfied. The
condition is that Court must come to the conclusion that
despite due diligence, the parties could not have raised the
matter before the commencement of the trial. The Apex Court
has
also
interpreted
the
meaning
of
expression
“commencement of trial” and has observed that the date on
which the issues are framed is the date of first hearing and
filing of an affidavit in lieu of examination in chief of the
witness is “commencement of proceeding”. It has also made
reference to the observations of another Bench of the Supreme
Court in the decision rendered in the case of Union of India
and others versus Major General Madan Lal Yadav (Retd),
reported in (1996) 4 SCC by reproducing them as follows:
“19.
It would, therefore, be clear that
trial means act of proving or judicial
examination
or
determination
of
the
issues including its own jurisdiction or
authority
adjudging
in
accordance
guilt
or
with
innocence
all
steps
law
of
of
the
accused including
necessary
thereto. The trial commences with the
performance of the first act or steps
necessary or essential to proceed with the
trial.”
From the above observations of the Hon'ble Apex
Court,
it
is
clear
that
the
trial
commences
with
the
performance of the first act or step necessary to proceed with
the trial. The first step necessary to go ahead with trial of a
civil suit is framing of issue and in the instant case, the issues
having been framed before filing of amendment application,
admittedly, the proviso to order 6, Rule 17 of C.P.C. would
come into picture and it would have to be seen if the condition
specified in the proviso is satisfied by the petitioner.
8.
It is contended by the learned Counsel for the
petitioners that amendment sought was on two aspects of the
matter, (i) seeking mandatory injunction ante and (ii) deletion
of respondent no. 4 as party-defendant. The learned Counsel
submits
that
since
it
came
to
petitioners
knowledge
subsequent to filing of suit that section 4 notification had been
issued and respondent no. 4 did not act as Government
contractor in carrying out the impugned works on the suit
property, it became necessary for them to amend the
pleadings, cause-title and relief clause and in such a case
question of due diligence would not arise.
9.
There is no dispute that during the pendency of the
suit, Section 4 notification came to be issued.
Therefore,
amendment as regards relief of mandatory injunction ante
could not have been made earlier with all diligence at
command of petitioners.
It has been necessitated, as
submitted by the learned Counsel for petitioners, by a
subsequent
development
of
Section
4
notification
and
prompted as a measure of abundant precaution as presently
only Section 4 notification has been issued and there is no
certainty that process of acquisition would be completed by
passing of award.
He submits that if property is acquired
eventually, the suit may become infructuous but till that time,
seeking of proposed relief is necessary.
Learned Counsel for
respondents 1, 2 and 3 submits that acquisition proceedings
are going to be logically concluded and, therefore, there is no
need to seek such a relief. However, having regard to stage of
the acquisition proceedings at present, some precautionary
measure from the view point of petitioners seems necessary
and they can be permitted to resort to it, if no prejudice is
going to be caused to other side. In my view, it will not cause
any prejudice to respondents as they can also seek leave of
Court below, in accordance with law, to make consequential
amendments. So, the amendment on this aspect should have
been allowed by the Court below.
10.
Learned Counsel for respondent no. 4 has submitted
that copy of the reply received by the petitioners upon their
query under R.T.I. Act has not been filed on record and
therefore, it is doubtful whether they have acquired any
knowledge about respondent no. 4. It is true that copy of the
reply was not produced on record.
But, the contention of
receipt of information under R.T.I. Act made in the petition is
supported by a solemn affirmation, and unless it is shown to
be patently false, and it has not been shown to be so, it cannot
be rejected.
Therefore, it has to be accepted that the
petitioners must
respondent no.
have
4
not
acquired the
being Government
a
knowledge
about
contractor
subsequent to suit and then, I do not think that anybody can
prevent the petitioners from choosing to not prosecute their
suit against respondent no. 4.
11.
The learned Counsel for respondents submits that
respondent no. 4 has taken a defence that petitioners are not
the owners of the suit property and therefore, respondent no.
4 would like to prove this fact.
He also submits that in the
opinion of the trial court, respondent no. 4 is a necessary party
in view of these pleadings.
Upon perusal of the impugned
order, it is seen that opinion so framed by the trial court is only
on the basis of the pleadings of the petitioners and not on the
basis of said defence taken by respondent no. 4.
These
pleadings are general in nature and the reliefs sought are also
general in nature. Still, as submitted by the petitioners, liberty
can be granted to the petitioners to further suitably amend the
plaint by seeking leave of the trial Court, in accordance with
law.
For that matter there is no need to prevent the
petitioners deleting respondent no. 4 as party-defendant.
Even otherwise, if petitioners are allowed to drop respondent
no. 4 as party-defendant without deletion of pleading that he
is not a Government contractor, the pleading will bind only the
petitioners and not a person who is not party to the suit.
Relief also, needless to say, cannot be granted against
someone not a party to the suit.
Besides, respondent no. 4
has an independent remedy available in law to prove his
contention, subject to his right to raise contention, that
petitioners are not the owners of suit property.
12.
In view of the above, I find that amendment of
pleadings, as sought by the petitioners, is necessary to
determine the real controversy in the suit and could not have
been effected earlier, despite due diligence.
It is squarely
covered by proviso to Rule 17, Order 6 of C.P.C. Therefore, I
do not think that the order passed by the learned District
Judge-1 can be sustained in law and the impugned order must
go.
13.
In
the
result,
the
petition
is
allowed.
The
application praying for carrying out of the amendment with
regard to
addition
of
prayer
clause
seeking mandatory
injunction ante and also deletion of respondent no. 4 from the
array of defendants, is allowed.
Liberty is granted to the
petitioners to carry out further amendment so as to seek
deletion of specific reference to respondent no. 4 by moving
suitable application, which shall be decided, if filed by the
petitioners, by the trial court, on merits, without being
influenced by the observations made in this order. Liberty is
also granted to respondents to seek leave of Court to carry out
consequential amendments, if any, which matter shall also be
decided by Court below on merits, without being influenced by
this order.
14. Rule is made absolute in these terms.
15. Parties to appear before the trial Court on 27 th
March, 2014.
16.
Writ petition stands disposed of.
S. B. SHUKRE, J.
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